Abstract

The question of whether Nazi law was valid law has been at the background of jurisprudential discourse since the Hart-Fuller debate in the 1950s. The enduring focus of that discourse on the validity question – the conditions of validity for law – and the separability question – the nature of the relationship between law and morality – has consigned the Third Reich to a specific jurisprudential role as a limit case for positivism and natural law. This dissertation elucidates and interrogates that role, using recent empirical and theoretical historical research to challenge its basis and assert the substantive relevance of the Nazi past for present legal theoretical concerns.

It argues that the jurisprudential representation of Nazi Germany is flawed. It relies on a hypothetical, superficial, evil straw man version of the Third Reich that bears little resemblance to its actual history. It also treats Nazi law as the paradigmatic, archetypal wicked legal system. This is informed by an underlying narrative of rupture between Nazi Germany, including its legal system, and the contemporary concept of law. The positivism/natural law dichotomy around which the discourse is structured is consequently incapable of adequately explaining and incorporating Nazi law. This dissertation draws on the legal theoretical writing of David Fraser to examine how it might be reimagined to achieve this.

The narrative of rupture that informs jurisprudence was constructed at Nuremberg and proliferated into historical understanding, public consciousness and, via the Hart-Fuller debate, jurisprudential discourse. Over recent decades it has been revised within historiography but its successor narratives have not made their way into jurisprudential discourse, which remains largely isolated from the historical discipline. This dissertation shows how the actual, historical case of Nazi law is not – but ought to be – part of the jurisprudential concept of law.